STATE OF
INDIANA |
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BEFORE THE
INDIANA DEPARTMENT |
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COMMISSIONER
OF THE DEPARTMENT Complainant, v. CITY OF PERU, Respondent. |
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AGREED
ORDER
Complainant
and Respondent desire to settle and compromise this action without hearing or
adjudication of any issue of fact or law, and consent to the entry of the
following Findings of Fact and Order.
Pursuant to IC 13-30-3-3, entry into the terms of this Agreed Order does
not constitute an admission of any violation contained herein. Respondent's entry into this Agreed Order
shall not constitute a waiver of any defense, legal or equitable, which
Respondent may have in any future administrative or judicial proceeding, except
a proceeding to enforce this order.
I. FINDINGS OF FACT
1.
Complainant is the Commissioner (“Complainant”)
of the Indiana Department of Environmental Management (“IDEM”), a department of
the State of Indiana created by Indiana Code (“IC”) 13-13-1-1.
2.
Respondent is City of Peru (“Respondent”), which
operates the Building and Zoning Department located at 35 South Broadway Street
in Peru, Miami County, Indiana (“Site”).
3.
IDEM has jurisdiction over the parties and the
subject matter of this action.
4.
Pursuant to IC 13-30-3-3, IDEM issued a Notice
of Violation (“NOV”) in conjunction with this Agreed Order via Certified Mail
to:
Gabriel Greer, Mayor
City of Peru
35 South Broadway Street
Peru, IN 46970
5.
During an investigation on August 16, 2018
conducted by a representative of IDEM, the following violations were found:
a. Pursuant to 326 IAC 14-10-4(1), each
owner or operator of a demolition or renovation activity is required to remove
all regulated asbestos containing materials from a facility being demolished or
renovated before any activity begins that could disturb the material.
Respondent failed to remove asbestos containing material RACM from a residence
located at 378 East Main Street in Peru, Indiana (the “Site”) before demolition
or renovation activity began, in violation of 326 IAC 14-10-4(1).
b. Pursuant to 326 IAC 18-1-3(a)(5), no person shall implement an asbestos project at a
facility without current licensing by IDEM.
Respondent failed to use a licensed
asbestos abatement contractor to remove asbestos prior to demolition of a
residence located at 378 East Main Street in Peru, Indiana, in violation 326
IAC 18-1-3(a)(5).
6.
Respondent submitted information regarding
compliance actions to prevent reoccurrence on October 19, 2018.
7.
In recognition of the settlement reached,
Respondent waive any right to administrative and judicial review of this Agreed
Order.
II.
ORDER
1.
This Agreed Order shall be effective
(“Effective Date”) when it is approved by Complainant or Complainant’s
delegate, and has been received by Respondent.
This Agreed Order shall have no force or effect until the Effective
Date.
2.
Respondent shall comply with 326 IAC 14-10-4(1)
and 326 IAC 18-1-3(a)(5).
3.
All submittals required by this Agreed Order,
unless Respondent is notified otherwise in writing by IDEM, shall be sent to:
Jennifer Bailey, Case Manager |
Compliance and Enforcement Branch –
Mail Code 61-53 |
Indiana Department of Environmental
Management |
100 North Senate Avenue |
Indianapolis, IN 46204-2251 |
4.
Respondent is assessed and agrees to pay a
civil penalty of Seven Thousand Dollars ($7,000). Said penalty amount shall be due and payable
to the Asbestos Trust Fund within thirty (30) days of the Effective Date; the
30th day being the “Due Date”.
5.
Civil penalties are payable by check to the “Asbestos
Trust Fund” Checks shall include the Case Number of this action and shall be
mailed to:
IDEM
Office of Legal Counsel |
IGCN,
Rm N1307 |
100
N Senate Ave |
Indianapolis,
IN 46204 |
6.
This Agreed Order shall apply to and be binding
upon Respondent and its successors and assigns. Respondent’s signatories to
this Agreed Order certify that they are fully authorized to execute this Agreed
Order and legally bind the party they represent. No change in ownership, corporate, or
partnership status of Respondent shall in any way alter its status or
responsibilities under this Agreed Order.
7.
In the event that the monies due to IDEM
pursuant to this Agreed Order are not paid on or before their Due Date,
Respondent shall pay interest on the unpaid balance at the rate established by
IC 24-4.6-1. The interest shall be
computed as having accrued from the Due Date until the date that Respondent
pays any unpaid balance. Such interest
shall be payable to the Asbestos Trust Fund, and shall be payable to IDEM in
the manner specified in Paragraph 5, above.
8.
In the event that any terms of this Agreed
Order are found to be invalid, the remaining terms shall remain in full force
and effect and shall be construed and enforced as if this Agreed Order did not
contain the invalid terms.
9.
Respondent shall provide a copy of this Agreed
Order, if in force, to any subsequent owners or successors before ownership
rights are transferred. Respondent shall ensure that all
contractors, firms and other persons performing work under this Agreed Order
comply with the terms of this Agreed Order.
10.
This Agreed Order is not and shall not be
interpreted to be a permit or a modification of an existing permit. This Agreed Order, and IDEM’s review or approval
of any submittal made by Respondent pursuant to this Agreed Order, shall not in
any way relieve Respondent of its obligation to comply with the requirements of
its applicable permit or any applicable Federal or State law or regulation.
11.
Complainant does not, by its approval of this
Agreed Order, warrant or aver in any manner that Respondent’s compliance with
any aspect of this Agreed Order will result in compliance with the provisions
of any permit, order, or any applicable Federal or State law or regulation. Additionally, IDEM or anyone acting on its
behalf shall not be held liable for any costs or penalties Respondent may incur
as a result of Respondent’s efforts to comply with this Agreed Order.
12.
Nothing in this Agreed Order shall prevent or
limit IDEM’s rights to obtain penalties or injunctive relief under any
applicable Federal or State law or regulation, except that IDEM may not, and
hereby waives its right to, seek additional civil penalties for the same
violations specified in the NOV.
13.
Nothing in this Agreed Order shall prevent IDEM
or anyone acting on its behalf from communicating with the EPA or any other
agency or entity about any matters relating to this enforcement action. IDEM or anyone acting on its behalf shall not
be held liable for any costs or penalties Respondent may incur as a result of
such communications with the EPA or any other agency or entity.
14.
This Agreed Order shall remain in effect until
IDEM issues a Resolution of Case letter to Respondent.
TECHNICAL
RECOMMENDATION: |
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RESPONDENT: |
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Department
of Environmental Management |
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City of Peru |
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David
P. McIver, Chief |
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Printed: |
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Office
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COUNSEL
FOR RESPONDENT: |
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APPROVED
AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL |
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MANAGEMENT THIS |
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DAY OF |
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2019. |
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For
the Commissioner |
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Signed
on February 25, 2019 |
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Matthew
Stuckey, Deputy Assistant Commissioner |
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Office
of Air Quality |
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Indiana
Department of Environmental Management |
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